# EUR-Lex - 52013PC0309 - EN

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# 52013PC0309

**Proposal for a COUNCIL DECISION establishing the European Union position within the TRIPS Council of the World Trade Organisation on the request for an extension of the transition period under TRIPS Article 66.1 for least-developed countries /* COM/2013/0309 final - 2013/0161 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           INTRODUCTION

From the adoption in 1994 of the World
Trade Organisation’s (WTO) Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), Least Developed Countries (LDCs) were exempted from
most TRIPS obligations for a period of ten years, beyond the initial one year
of general exemption for all WTO Members, via its Article 66.1. This same
Article also provides for the possibility of further extensions of this period
upon a duly motivated request. In 2005, following a specific request from LDCs,
this exemption was duly extended to 1 July 2013.

In view of the approaching deadline, Haiti, on behalf of the LDC group, formally submitted a request on 5 November 2012 for an
extension of the transitional period (see WTO Document IP/C/W/583). Rather than
asking for a specific extension calculated in years, this time the LDC group
has asked for an exemption ”...until they cease to be a least developed
country Member."[1]

A summary of the background to the LDC
Group's request is set out below.

2.           SUMMARY

The TRIPS Agreement’s preamble acknowledges
LDCs' particular need for maximum flexibility in implementing laws and
regulations domestically, the objective being to enable them to create a sound
and viable technological base. It also allowed LDCs ten years from 1995 to
apply the bulk of TRIPS obligations. The transition period was extendable in
response to a specific request and in 2005 LDCs asked for an extension by 15
years and ultimately obtained an extension by 7.5 years, until 1 July 2013.
Meanwhile, the 2001 Doha Declaration on TRIPS and Public Health had already
extended the period for LDCs to comply with provisions on patent and data
protection for pharmaceuticals to 2016.

In the discussions leading up to the
decision in 2005 to extend the deadline for compliance with TRIPS obligations,
one of the questions raised was whether the extension should be given on a country
by country basis or as a group. The final agreement gave the extension to all LDCs
as a group. When the TRIPS Council agreed to the 2005 extension, it also set up
a process to help LDCs implement TRIPS within their national intellectual
property regimes. The TRIPS Council called on LDCs to identify their priority
needs for technical and financial cooperation and asked developed countries to
help address those identified needs. It also called for enhanced cooperation
with the World Intellectual Property Organisation and other relevant
international organisations. The emphasis was on the individual priorities of each
LDC and on ensuring these needs are effectively met.

Recognising the utility of intellectual
property for development, ministers at the Regional Preparatory Meeting for
Africa in Dar es Salaam in March 2013 ahead of the Annual
Ministerial Review of the UN Economic and Social Council, for example declared
that "Policymakers in Africa should redouble efforts to develop their
legal and policy frameworks, including their intellectual property legislation
and policy, so as to release the region’s untapped potential." Further postponements in implementing TRIPS provisions could therefore
hinder growth possibilities for LDCs. An indefinite timeline could also remove
some incitation to work towards implementation at all. However, it remains the
case that some LDCs have progressed further than others in their
implementation. Bearing this in mind, a limited extension is acceptable. A
limited extension should be accompanied by further targeted technical
assistance, of which the EU has been a significant provider. Moreover, a
comprehensive analysis of the state of implementation on the ground in each LDC
would be useful in order to draw a clearer picture of the situation and thus
allow for prioritised and effective assistance.

To avoid the debate in the WTO from digressing
from the issue at hand, a new decision to extend the exemption should follow
the general structure of the one taken in 2005. Notably, LDCs committed to not
reduce the level of intellectual property protection that already existed in
their country during the transition period. Furthermore, the current decision
to be taken on the general exemption for LDCs to implement TRIPS should be kept
separate from the decision of the TRIPS Council of 27 June 2002 on the "Extension
of the Transition Period ... for LDC Members for Certain Obligations with respect
to Pharmaceutical Products".

3.           RECOMMENDATION

As a response to the LDC group’s request,
the Commission recommends the Council of the European Union to establish the
following Union position: LDC Members should not be required to apply the
provisions of the TRIPS Agreement, other than Articles 3, 4 and 5, for a period
no longer than the duration of the extension granted previously in 2005, or
until such a date on which they cease to be a least-developed country Member,
whichever date is earlier. During this time, proper consideration could be
given to the varying states of TRIPS implementation across LDCs, and how
technical assistance can be further used to help address these shortcomings,
with primary focus on those areas of most immediate utility. During this
extension period, LDCs should not decrease their already existing level of IP
protection below the standards set by TRIPS.

2013/0161 (NLE)

Proposal for a

COUNCIL DECISION

establishing the European Union position
within the TRIPS Council of the World Trade Organisation on the request for an
extension of the transition period under TRIPS Article 66.1 for least-developed
countries

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 207(4) and Article
218(9) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On
5 November 2012 Haiti, on behalf of the LDC Group, formally requested an extension to the transition period for the
implementation of the World Trade Organization's (WTO) Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS), pursuant to Article 66.1 of that Agreement.

(2)       The existing transition
period, as agreed in the Decision of the Council for TRIPS of 29 November 2005
(IP/C/40), was due to expire on
1 July, 2013.

(3)       Article 66.1 of the TRIPS
Agreement provides that the Council for TRIPS "shall,
upon duly motivated request by a least developed country Member, accord extensions
of this period".

(4)       The leveraging and
protection of intellectual property is a key factor in promoting socio-economic
growth, as for example recognised by ministers at the Regional Preparatory
Meeting for Africa in Dar es Salaam in March 2013 ahead of the Annual
Ministerial Review of the United Nations Economic and Social Council, which
called for a redoubling of effort to develop legal and policy framework for
e.g. intellectual property.

(5)       Least developed country
members (LDCs) have progressed at different paces and depth in their
implementation of the WTO TRIPS Agreement.

(6)       Valuable steps have
already been taken in the field of intellectual property by a number of LDCs,
but it remains the case that LDCs have special needs and requirements and continue
to face economic, financial and administrative constraints, therefore they have
a need for flexibility and further time to implement the provisions of TRIPS.

(7)       Accordingly, it is
necessary to extend the transition period for implementation of the TRIPS
Agreement for least-developed country members of the WTO,

HAS ADOPTED THIS DECISION:

Article 1

1.           The position to be taken
by the European Union within the TRIPS Council of the World
Trade Organization on the request for an extension of
the transition period under TRIPS Article 66.1 for least-developed country
Members (LDCs) is that LDCs should not be required to apply the provisions of
the TRIPS Agreement, other than Articles 3, 4 and 5, for a period no longer
than the duration of the extension granted previously in 2005, or until such a
date on which they cease to be a least-developed country Member, whichever date
is earlier.

2.           During this extension
period, LDCs should not decrease their already existing level of IP protection
below the standards set by TRIPS.

3.           During this period, proper
consideration should be given to the varying states of TRIPS implementation
across LDCs, and how technical assistance and capacity building programmes can
be further used to help address these shortcomings, with primary focus on those
areas of most immediate utility.

Article 2

This Decision shall enter into force on
the day of its adoption.

Done at Brussels,

For
the Council

The
President

[1]               Proposed
text for a TRIPS Council Decision in the LDC Communication reads: “Least
developed country Members shall not be required to apply the provisions of the
Agreement, other than Articles 3, 4 and 5, until they cease to be a least
developed country Member”.